On August 27, 2015, the National Labor Relations Board expanded the joint-employer standard in Browning Ferris Industries, citing, inter alia, the Restatement (Second) of Agency, and the Restatement of Law, Employment Law in its Opinion.
In response to the NLRB decision, Rep. John Kline and Sen. Lamar Alexander introduced the Protecting Local Business Opportunity Act (H.R. 3459, S. 2015). This bill looks to amend the National Labor Relations Act “to allow two or more employers to be considered joint employers for purposes of the Act only if each shares and exercises control over essential terms and conditions of employment and such control over these matters is actual, direct, and immediate.”
Hearings in response to the legislation began yesterday, September 29, 2015. One of the testifying witnesses was Associate Reporter for the Restatement of Law, Employment Law, Michael C. Harper of Boston University School of Law, who provided insight on the proposed legislation. Professor Harper testified:
Under the various multifactor tests encompassed by the traditional “right-to-control” test, courts consistently treat such workers as employees. In § 1.01 of the Restatement of Employment Law, the American Law Institute recognized that such treatment is appropriate because whether or not the employer regularly exercises control over the manner or means of the employee’s service, the employer’s authority over the employee prevents the employee from choosing to render that service in a manner that serves the employee’s own interests independently from those of the employer.
You may read a transcript of Professor Harper’s testimony here.
A video of yesterday’s hearing may be viewed here.